Bank of New York Mellon v. Hoffman

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[Cite as Bank of New York Mellon v. Hoffman, 2018-Ohio-1679.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO THE BANK OF NEW YORK MELLON f.k.a. THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2007-1, : MEMORANDUM OPINION : CASE NO. 2017-T-0071 : : Plaintiff-Appellee, : -vs: THOMAS R. HOFFMAN, JR., et al., : Defendants, : CHRISTINA D. HOFFMAN a.k.a. STEWART, Appellant. : : Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV 02160. Judgment: Appeal dismissed. James W. Sandy and Kevin S. Lampone, McGlinchey Stafford, PLLC, 25550 Chagrin Boulevard, Suite 406, Cleveland, OH 44122 (For Plaintiff-Appellee). Christina D. Hoffman a.k.a. Stewart, pro se, 3958 North Pricetown Road, Newton Falls, OH 44444 (Appellant). THOMAS R. WRIGHT, P.J. {¶1} Appellant, Christina D. Hoffman aka Stewart, appeals the trial court’s decision striking her pro se motions seeking a cease and desist order, urging the trial court to reconsider its decree of foreclosure and confirmation of sale of the subject property, and asking the court to dismiss the case as illegal. Finding lack of final appealable order, we dismiss. {¶2} The Bank of New York Mellon, f.k.a. the Bank of New York, as trustee for the Certificateholders of the CWABS, Inc., asset-backed certificates series 2007-1 (“the Bank”) filed a complaint in foreclosure against Thomas R. Hoffman, Jr., his unknown spouse, if any, Midland Funding, LLC, and the Trumbull County Treasurer relative to real property located at 3958 North Pricetown Road in Newton Falls, Ohio, alleging that Thomas was in default on his note and mortgage. Christina is not named as a party in the complaint, and the complaint does not state that the Bank could not discover the name of Thomas’ wife. Civ.R. 15(D). {¶3} The Bank filed a judicial report on the same day as the complaint, which states that as of November 17, 2015, the title to the subject property was vested in Thomas, free and clear of all encumbrances. It also states that he is married and that there was a divorce action filed on January 23, 2015 between Thomas and Christina D. Hoffman. {¶4} Following unsuccessful service on Thomas and his “unknown spouse, if any,” at the subject address, the Bank secured service by publication. {¶5} Thereafter, the trial court granted default judgment in the Bank’s favor on April 27, 2016 since Thomas, his unknown spouse, if any, and Midland Bank failed to answer the complaint. The default judgment references Christina D. Hoffman by name as a nonparty to the case and as a signator of an underlying mortgage deed. {¶6} The property was sold at sheriff’s sale in November 2016, and the trial court confirmed the order of sale and ordered distribution on November 30, 2016. 2 {¶7} Thirty days later, on December 30, 2016, Christina filed two pro se motions. This was her first appearance in the case. She asked for reconsideration and dismissal of the case as illegal. She alleges she is blind and that the Bank used her disability against her. She claims she was never served as a party and that counsel for the Bank rushed through the foreclosure process to exclude her from asserting her rights to the property. {¶8} In February of 2017, Christina filed three more pro se motions seeking a cease and desist order, urging the trial court to set aside the sale of the subject property, and asking the court to dismiss the Bank’s case as illegal. In response, the Bank moved to strike all of Christina’s filings in the case because she was not a party. Thereafter, Christina filed another motion to dismiss the case, which the Bank likewise moved to strike. {¶9} Christina filed another motion for the Bank to cease and desist, which it again moved the court to strike from the record. Christina attached numerous uncertified documents to her filings in support of her claim that her ex-husband was the named defendant and that she was awarded the subject property following the parties’ divorce. She also averred that the Bank was aware of her existence as the rightful owner of the home and that she was denied the opportunity to defend the foreclosure action based on its failure to name her as a party. {¶10} On July 12, 2017, the trial court granted the Bank’s motions to strike and ordered all filings submitted by Christina to be stricken from the record since she was not a party to the action and because the sale of the subject property was confirmed before her pro se motions were filed. This judgment entry also advises that “the Court expects there be no further repetitious pleadings in this matter.” 3 {¶11} Christina appeals this July 12, 2017 decision. Because her brief does not comply with the appellate rules governing the form and content of appellate briefs, it is difficult to ascertain the substance of her numerous arguments on appeal. Notwithstanding, it appears Christina is claiming that she is the owner of the property subject to foreclosure and that the court erred in granting default judgment and foreclosure on the property absent the Bank’s identification of her as a party. She also claims that any loans signed by her ex-husband are void due to his lack of mental capacity to enter a contract. She likewise claims that the Bank proceeded illegally in selling itself the home that belongs to her. {¶12} Regardless, an appellate court can only review a trial court’s judgment if it constitutes a final order. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.02(B); Estate of Biddlestone, 11th Dist. Trumbull No. 2010-T-0131, 2011-Ohio-1299, ¶3. A reviewing court has no jurisdiction to review the matter and the matter must be dismissed if the order appealed from is not final. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). {¶13} Here, the decree in foreclosure and confirmation of sale are final orders. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶39. These decisions were issued 30 days and more before Christina began filing her pro se motions. The Ohio Rules of Civil Procedure, however, do not prescribe motions for reconsideration, to cease and desist, and to dismiss a case after a final judgment is issued. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d 1105 (1981). “Rather the Civil Rules do allow for relief from final judgments by means of Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59 (motion for a new trial), and Civ.R. 60(B) 4 (motion for relief from judgment). * * * [And] without a specific prescription in the Civil Rules for a motion * * *, it must be considered a nullity.” Id. at 380. {¶14} Because the trial court already entered final judgments upon issuing the decree in foreclosure and confirming the sale, Christina’s motions, including her motion for reconsideration, motion for the Bank to cease and desist, and motion to dismiss the case, are nullities not subject to appellate review. Id. at 381 (holding that judgments or final orders from a motion that is a nullity are a nullity.). Thus, because her motions are nullities, the trial court’s decision overruling the motions is likewise a nullity, and “there is no judgment from which appellant may properly appeal * * *.” State v. Cox, 11th Dist. Trumbull No. 2007-T-0042, 2007-Ohio-4278, ¶7. {¶15} Further, we do not determine whether Christina was a party because disposition does not require a determination of this issue. Notwithstanding, since Christina was not a named party when the decree of foreclosure and order confirming the sale were issued and the Bank is not claiming she was a party, these decisions may not be conclusive as to her rights regarding the property, if any. See Soc. Natl. Bank v. Wolff, 6th Dist. Sandusky No. S-90-13, 1991 WL 64865, *4 (holding a trial court may vacate its judgment of confirmation for good cause shown); Famageltto v. Telerico, 11th Dist. Portage No. 2012-P-0146, 2013-Ohio-3666, 994 N.E.2d 932, ¶11 (“When a court lacks personal jurisdiction over a defendant as a result of deficient service, that defendant is entitled to have the judgment vacated and need not satisfy the requirements of Civ.R. 60(B). See State ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650, paragraph one of the syllabus (1990).”). 5 {¶16} Appellant’s appeal is dismissed. DIANE V. GRENDELL, J., COLLEEN MARY O’TOOLE, J., concur. 6

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